Pataki Says He Knew No Details of Law Confining Sex Offenders
New York Law Journal July 24, 2013

George Pataki denied on Tuesday that as governor he directed top administration officials to begin the civil commitment of violent sexual predators on the brink of release from prison without notice or a hearing.

Testifying in a trial where six convicted, and then committed, sex offenders claimed Pataki and officials with the Office of Mental Health and Department of Correctional Services conspired to deprive them of their constitutional rights, Pataki said he was not involved in the specifics of the Sexually Violent Predator initiative (SVP) launched in September 2005.

"I didn't know what law was being used or what particular part of the law was being used," Pataki told a jury in the courtroom of Southern District Judge Jed Rakoff (See Profile). "I directed my team to work with OMH and work with corrections to put in place the program" but, he said, he did not direct them to any particular statute.

"I personally never had any contact with DOCS or OMH, so no, I didn't direct them directly," he said.

Pataki insisted that he only asked those who worked for him to take a look at the law and see "if we have the existing authority" in their opinion to begin the civil commitment of sex offenders who remain a threat to the public.

"Once they came back and said yes…we are in agreement and we can move forward with the program under the existing authority, I said 'So, go ahead,'" he testified.

The three-term governor's testimony came during the second week of trial in Bailey v. Pataki, 08 Civ. 8563, where Kenneth Bailey and five other plaintiffs allege the governor and other top officials kept them locked up in an act of political grandstanding.

The SVP initiative was launched pursuant to New York Mental Hygiene Law 9.27 in 2005 by a governor frustrated that, year after year, the state Senate would overwhelmingly pass a civil commitment bill that Assembly leaders would not even bring to the floor for a vote.

Within a year, 787 inmates on the verge of completing their prison terms had been evaluated by three state psychiatrists and 112 had been committed. They were sent straight to Manhattan Psychiatric Center without a hearing.

But in 2006, the New York Court of Appeals said in State ex rel. Harkavy v. Consilvio, 7 N.Y. 3d 607, that post-release commitment could only occur through Correction Law 402, and only through a judicial determination made after notice, hearing and examination by court appointed psychiatrists.

Once the plaintiffs filed suit, the defendants had claimed qualified immunity, but Rakoff rejected that claim in 2010, saying that Pataki, the former DOCS and OMH commissioners, and others "rather blatantly violated plaintiffs' constitutional rights" (NYLJ, July 8, 2010).

Rakoff told the jury at the outset that there is no question the practice of commitment without a hearing is unconstitutional. So the central issue on the claims, and a possible award of punitive damages, is the degree of personal involvement by the Pataki defendants, and whether the "violation of a plaintiff's rights was done intentionally, recklessly, wantonly, maliciously or the like, or was done, by contrast, in good faith."

Like the other officials, Pataki was initially represented by New York State Attorney General's Office. But when the judge ruled pretrial that the governor had waived the defense of relying on advice of counsel in green-lighting the SVP, Pataki switched gears, shed the A.G.'s office and retained fellow Chadbourne & Parke partner Abbe Lowell as counsel.

After the counsel substitution on July 3, Lowell renewed the attempt to invoke advice-of-counsel but Rakoff held again on the eve of trial that the defense had been irretrievably waived.

However, the issue reemerged on Tuesday when Pataki was being questioned by plaintiffs' attorney Ameer Benno.

Benno was putting before the jury quotes attributed to the governor issued by his press office during the first year or so of the initiative. One said, "In September, 2005, I directed" OMH and DOCS "to ensure that every sexually violent predator in state custody" be evaluated to determine if they should be civilly committed.

"That's in the first person, is it, sir?" asked Benno.

"Yes," Pataki said.

But the governor said his "press office was given authority to put out statements based on their knowledge" of administration positions, and so when another statement was put out that the SVP initiative was intended to "push the envelope" on existing laws to win civil commitments, those weren't necessarily his words.

The dispute then turned to questions about whether Pataki had in fact actually waived the advice of counsel defense in his answer to the complaint and his response to a request for admissions by the plaintiffs several years ago.

Pataki raised the possibility that he had seen neither the answer nor the admissions and he was therefore taken aback before his deposition when someone with the A.G.'s office told him not to assert the advice of counsel defense at deposition.

Pataki said he did not recall who the person was. But when he asked the person why he could not assert the defense, Pataki said he was told, "You don't want to know."

This statement led Rakoff to call in lawyers with the A.G.'s office to ask if they recalled showing Pataki, or sending to him or his counsel, the answers to the request for admissions.

The attorneys, including assistant attorney general Edward Curtis, all told the judge it was their practice to give or send the answers to request for admissions to defendants they represent and they could not recall whether that practice was followed in Pataki's case.

Given those representations, and because Pataki's memory was not clear on the subject, Rakoff allowed Benno to introduce the admissions.

Pataki, Benno said, admitted that he ordered DOCS and OMH to use Article 9 and its procedures for involuntary commitment.

Rakoff cautioned the jury that the admission "doesn't necessarily mean that he personally ordered" the use of Article 9, "but you must take as conclusive that he directly or indirectly" ordered the measures put in place.

Near the end of his direct testimony, Pataki continued to press the claim indirectly that he had relied on the advice of his team, including his chief counsel Richard Platkin, in coming up with a plan after talking to the relevant agencies.

Benno pressed him, getting the governor to concede this was a "criminal justice initiative" and asking Pataki about giving a TV interview in which he said, "We're going to continue to hold them behind bars."

Pataki said the men had indeed "paid their debt to society" but it was his belief, based on the feedback from his staff, that it was lawful to obtain civil commitment, following examination by three psychiatrists, of "people who continue to pose a threat of violence to themselves or others."

Pataki's examination by Lowell began late on Tuesday and was expected to conclude this morning.

Pataki recounted to Lowell and the jury the reasons why he felt so strongly about working to contain violent sexual predators.

He recounted hiking with his wife and young son in Hudson Highlands Park near Phillipstown in 1995 or 1996 and there was one individual, "a male who, when no one else was around, would continually stand and walk right next to us and we would even go off the trail for a view.

"He would walk right out and stand next to the kids. I was a governor, so the State Police were down the trail, so I called them and the State Police came, and they started asking the man why he was following us and following the children. I was advised later on that he was had been convicted of sexual crimes in the Rochester area.

"I had Troopers, but I couldn't help but think of a mother in a walk in the park with a child or a child at a playground and it just made me personally aware not just of the horrors of these crimes but the immediacy of the possibility," he said.

Pataki also talked about a woman who in 2005 was killed at the Galleria Mall in White Plains by a sexually violent convicted criminal who had been released on parole some time before.

"He was obviously mentally ill and one of the things he said as to why he committed this murder… One, he had to register under Megan's Law as a convicted sex offender, and the second was that he was not getting the mental health treatment from Westchester County that he thought he deserved," Pataki said. "This was a classic case of someone who actually wanted mental health services, had been a convicted sex offender and committed this heinous murder in the middle of the day."